JUDGMENT P.K.Palli, J.: This second appeal has been filed by the plaintiff. The parties, herein-after in this judgment, shall be referred to as plaintiff and defendants. The plaintiff filed the present suit seeking a decree for possession of the suit land claiming herself to be its owner. 2. It is stated that during the settlement operations the defendants in connivance with the settlement stafff got the revenue entries changed whereby they were shown in possession of the suit land and thereafter on the strength of these entries the defendants forcibly dispossessed the plaintiff. 3. Defendant No. 1 did not put in any contest though served for May 13. 1986. She was proceeded against exparte. 4. Only defendant No.2 laid contest and in the short written statement filed by him, it was pleaded that he has been in possession of the suit land in the capacity of non-occupancy tenant for more then 25 years and had now become owner by operation of law as envisaged by Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act. It was denied that the plaintiff was ever in possession of the land. The entries carried out by the settlement staff were stated to be absolutely correct, rather the defendant is aggrieved that he was not recorded as non-occupancy tenant, though, he has been shown in possession of the suit land. 5. The controversy between the parties was projected in three issues, that is whether the defendants took possession of the suit land during settlement operations forcibly and secondly whether defendant No.2 was a tenant on the suit land and had become owner by operation of law. The third issue was framed as to whether the suit is time barred. 6. The learned trial court, on appreciation of evidence placed on record by the parties, concluded that the defendants had not taken forciable possession of the suit land, as alleged by the plaintiff. It was also held that defendant No.2 is not proved to be a tenant over the suit land. On issue No.3, it was held that the suit is not time barred. Strangely, (he suit filed b\- the plaintiff was ordered to be dismissed. 7. The plaintiff feeling agitated laid challenge to the judgment and decree passed by the learned trial Court before the learned first appellate Court. On issue No.3, it was held that the suit is not time barred. Strangely, (he suit filed b\- the plaintiff was ordered to be dismissed. 7. The plaintiff feeling agitated laid challenge to the judgment and decree passed by the learned trial Court before the learned first appellate Court. The learned first appellate Court after scrutiny of the entries forming record-of-rights gave absolutely anew turn to the whole case and it has been observed that there was an exchange of the land between Satya Devi. plaintiff, and Achhri Devi, defendant No. 1 and this exchange though, was never set tip. but the same cannot be lost sight of. It was found that Satya Devi, plaintiff, was never in possession of the suit land and consequently the question of her forcible dispossession by the defendants docs not arise. It was further found that the land is owned by Achhri Devi and others and she exchanged this land with Satya Devi comprised in Khasra No. 125 and possession remained with Chuhru, defendant No.2. A further finding was recorded that defendant No.2. Chahru. was non-occupancy tenant in possession of the suit land and the plaintiff is not entitled to take possession from him unless the tenancy is determined. The appeal filed by the plaintiff was. thus, dismissed with the aforesaid observations. - 8. Pl. Om Parkash, learned counsel appearing for the plaintiff, contends that the learned first appellate court made totally a new case at the stage of appeal which was never pleaded by either of the parties and least proved. 9. It is being forcefully contended that the learned trial Court having found that defendant No.2 is not a tenant over the suit land, the suit filed by the plaintiff seeking a decree for possession was straightway liable to be decreed and the question whether the plaintiff was forcibly dispossessed or not, was not material in the given situation. It is also argued that there was no material on the basis of which and that too in appeal filed by the plaintiff, the findings returned by the learned trial Court could be upset by holding that defendant No.2 is not a tenant over the suit land. 10. It is also argued that there was no material on the basis of which and that too in appeal filed by the plaintiff, the findings returned by the learned trial Court could be upset by holding that defendant No.2 is not a tenant over the suit land. 10. The learned counsel appearing for the contesting defendant, in reply, has adopted the same line of reasoning, as has been projected by the learned first appellate Court and it is further contended that the learned first appellate Court was well within its jurisdiction to grant such relief to the defendant as he was entitled to and the provisions of Order 41 Rule 22 have to be read with Order 41 Rule 33 of the Code of Civil Procedure. Mr. Gupta further argues that the exchange has been established on record and on the basis of this exchange plaintiff, Satya Devi, was neither owner of the suit land nor was in its possession and the contesting defendant was, admittedly, a tenant of Achhri Devi in respect of’ he entire land and has become tenant of the plaintiff in view of the exchange. 11. Both the learned counsel for the parties has read the entries forming record-of-rights in the manner that would adjust and supplement their contentions. 12. After hearing the learned counsel for the parties at length and on careful perusal of the impugned judgment and decree and tin record, I find (hat the case set-up by the plaintiff is short and simple. The suit has been filed in respect of Khasra No.362, measuring 0-07-75 HM, situate in Tika and Mauza Bhadroya, Tehsil Nurpur, District Kangra. It has been said in the plaint that the plaintiff was in cultivating possession of the suit land and during settlement operations the defendants in connivance with the revenue staff got their names recorded as "KABAZ" and thereafter forcibly dispossessed her from the suit land. This is all what has been said in para 3 of the plaint. 13. In the short written statement filed by defendant No.2, the settlement operations are admitted and defendant No.2 was found in possession, though he has been recorded as such, but the staff committed a mistake by not recording him as non-occupancy tenant. This is all what has been said in para 3 of the plaint. 13. In the short written statement filed by defendant No.2, the settlement operations are admitted and defendant No.2 was found in possession, though he has been recorded as such, but the staff committed a mistake by not recording him as non-occupancy tenant. It is stated by him that he is a tenant over u\e suit land for the last 25 years on payment of GALA BATAI and had now become is owner by operation of law. It is denied that he forcibly took possession of the suit land during settlement operations. 14. The first document in point of time is Ext. D.5 which is a Jamabandi of the year l966-67 Defendant No. 1, Achhri Devi, is recorded as owner of half share in respect of land comprised in Khasra No.38, measuring 6 kanals 12 marlas. The other half share is recorded in the ownership of Rasila and Hans Raj Chuhru is recorded in the column of cultivation as "GAIR MAROOSI" under Achhn "H1SSA"^AR". In the remarks column it is recorded in red ink that 1 /4th share ~s been gifted away by Acchri Devi in favour of Balbir Singh, Joginder Singh etc. A reading of this document, thus, goes to show that Chuhru was recorded as "GAIR MAROOSI" under Achhri Devi in respect of her share and out of that share she had gifted l/4th to Balbir Singh and others by way of gift. 15. The next document in point of time is Ext.D-1, Jamabandi of theyear 1970-71, where Achhri Devi is recorded as owner of Khasra No. 125, measuring 2 karials 14 marlas and Satya Devi is recorded in the column of cultivation as "GAIR MAROOSI" and in rent column No.9 it is recorded as "BILA LAGAN BAWJA TABADLA ZAWANI" in respect of khasra No. 128 min. 16. A reading of this Jamabandi would show that khasra No. 128 min has been exchanged with khasra No. 125 and the earlier khasra No. 125 is given as Khasra No.41. It is pertinent to find that the name of defendant No.2 is no where shown as in possession of this land in any capacity whatsoever, immediately following is Misal Haquiat BandobastlExt._D.2 of the year 1970-71. It would, thus, mean that this document was prepared during settlement operations immediately after Ext. It is pertinent to find that the name of defendant No.2 is no where shown as in possession of this land in any capacity whatsoever, immediately following is Misal Haquiat BandobastlExt._D.2 of the year 1970-71. It would, thus, mean that this document was prepared during settlement operations immediately after Ext. D. 1 Satya Devi, plaintiff, is recorded as owner of khasra No. 128 min which is further bifurcated in two parts one measuring 3 kanals IX marlas and the other 2 kanals 14 marlas. In respect of 3 kanals IH marlas the possession, in the column of cultivation, Satya Devi is recorded as "KHUD K.ASHT" whereas in respect of land measuring 2 kanals 14 marlas. Acchri Devi, defendant No.l, is recorded as "GAIR MAROOSI". In column No.9, in respect of Achhri Devi, it is said. "BILA LAGAN BAWJA TABADLA ZAWANl". 17. Ext. D.3 is the Jamabandi of the year 1971- 72 and the entries arc exactly the same as in Ext. D.2 similar is the position in respect of the entries comprising Jamabandi of the year 1977-78, Ext. D.4. This also appears to have been recorded during settlement operations. This is the entire evidence which has been placed on the record in the shape of revenue entries from the side of the defendants. 18. Ext P. 1 is the Jamabandi, which is said to have been prepared during settlement. No year is mentioned on this document. On the top of it against the column of ownership, the name of the plaintiff is recorded. Immediately next below against column of cultivation Achhri Devi, defendant No. 1, is recorded as "KABAZ AWAL" and defendant No.2, Chuhru, is recorded as "KABAZ DOEM". This is in respect of old khasra No.128 min and new khasra number given is 362. There is a note in red ink, in the remarks column No.5. It reads that the change is being made as per orders of the Settlement Naib Tehsiidar in file No.35/SNT dated July 22,1984. This document has an important bearing on the controversy between the parties. Old Khasra No.128 min was given new khasra No.362. Achhri Devi is shown as "KABAZ AWAL" and Chuhru Ram is shown as "KABAZ DOEM" and appears for the first time in this document and as per note given in red ink, change was made in sequence of some order passed by the Naib Tehsiidar Settlement. Old Khasra No.128 min was given new khasra No.362. Achhri Devi is shown as "KABAZ AWAL" and Chuhru Ram is shown as "KABAZ DOEM" and appears for the first time in this document and as per note given in red ink, change was made in sequence of some order passed by the Naib Tehsiidar Settlement. Strangely enough, no such order has been placed on record to clear the position. It is, thus, not clear as to how defer Jan t No.2, Chuhru, came to be recorded in possession and undei what terms and conditions. He is certainly not recorded as non-occupancy tenant; it is the case of the defendant as projected in the written statement that he is in possession simplicitor, though he should have been shown in possession as occupancy tenant by the settlement authorities. 19- Ext. P.2 is the Jamabandi placed on record by the plaintiff, which is of the year 1977-78. Satya Devi, plaintiff, is recorded as owner of khasra No.128 min and Achhri Devi is recorded as "GAIR MAROSSI". In the column LAGAN reference is made to oral exchange with khasra No. 125. Measurement of this land is given as 2 kanals 14 marlas. 20. A detailed perusal of the entries referred to above, thus, do not connect the suit land with the land given in Ext. D.5, Jamabandi of the year 1966- 67, where Chuhru is recorded under Achhri with respect to Khasra No.38. It was absolutely necessary for the defendant to connect that khasra No. 125 min came to be carved out of khasra No.38. In my view, the exchange has not been validly proved. 20-A In the written statement filed by the defendant he claims tenancy, rights against the plaintiff. No document has beer, placed on record to show as to how the defendant was inducted as a tenant by the plaintiff and on what land. The tenancy as too well known, is a creation of bilateral agreement between the landlord and the tenant. In the written statement, he alleges himself to be a tenant on payment of "GALA BATAI", whereas in none of these documents it is so recorded. The learned trial Court, thus, rightly concluded that the defendant had failed to establish himself as tenant over the suit land under the plaintiff. The case at best set by the defendant is based on Ext. The learned trial Court, thus, rightly concluded that the defendant had failed to establish himself as tenant over the suit land under the plaintiff. The case at best set by the defendant is based on Ext. P. 1, where he is recorded as "KABAZ DOEM". Once it is found that the defendant has not been able to prove as to how he was put in possession and by whom and on what terms, his possession has to be treated as unauthorised and the plaintiff having proved her title, was certainly entitled to the decree for possession, as claimed by her. 21. Interestingly, defendant No. l has not contested the suit. It would mean that the averments made by the plaintiff in the suit are accepted by her. It is really strange as to how the learned first appellate Court has dealt with the matter. In para 15, it has been specifically observed by the learned Court that the plea of exchange has not been set up by the parties, but the same is apparent on the reading of the record. Again, it bar, been observed that Chuhru Ram is recorded as non-occupancy tenant under Achhri Devi in respect of the entire land comprising khasra No.38, measuring 6 kanals 12 marlas. This document has been clearly mis-read and mis-construed. The learned first appellate court has gone wrong in holding that khasra No.3X, during the settlement, was given khasra No. 125 min. In fact as per Bandobast Jamabandi 1970-71, Ext. D.2. it khasra No. 38 which is given khasra No 128 min and in the Jamabandi. Ext. D3, it is khatauni No.38 min which bears khasra No. 128 m in. measuring 3 kanals l8 marlas and is recorded as "KHUD KASHT” by plaintiff Satya Devi. 22. In the written statement, the defendant has claimed himself to be a tenant over the suit land under the plaintiff. The suit is in respect of Khasra No.362 and Khasra No 362 is the new khasra number given to old khasra No.128 min. The learned first appellate Court has, thus, gone wrong in holding that the plaintiff has not been able to prove herself in ossession and that she was forciby dispossessed on the strength of entries receded during settlement. 23. As per statement made by defendant No.2 examined as DW-1. The learned first appellate Court has, thus, gone wrong in holding that the plaintiff has not been able to prove herself in ossession and that she was forciby dispossessed on the strength of entries receded during settlement. 23. As per statement made by defendant No.2 examined as DW-1. it has been stated by him that he has not paid anything as "GALA BATA1" for the last 10-12 years. as he had become owner of the land. Earlier to it, as said by him he was a tenant under Achhri Devi. Rasila and Hans Raj that is not the case set up by him in the written statement. 24. Once it is so held that the plaintiff is owner of the suit land and the defendant has not proved himself to be a tenant on the suit land, the plaintiff is certainly entitled to the decree for possession as claimed by her against him. As admitted by the defendant that he has not paid any "GALA BATAI" for the last 10-12 years, the plaintiff in the given situation shall also be entitled to mesne profits of this land which are directed to be worked out by the Executing court from the date of the suit till the plaintiff is put in possession. 25. In view of what has been said above, the impugned judgments and decree passed by the learned courts below are ordered to be set aside and the suit of the plaintiffs, as prayed for, is ordered to be decreed. The plaintiff is also held entitled to the mesne profits, as observed above. This appeal is allowed in the aforesaid terms with costs throughout.